By Isha Thakur, Law Student, SNDT Law School

ishav1998@gmail.com | Dec 10, 2020

According to the Hindu religious codes/tenets, marriage is considered to be a religious sacrament, sanctified in the presence of gods. Marriage, being regarded as sacrosanct, is an obligation meant for procreation and preservation of the familial legacy as per the Hindu Dharma. In the pre-independence era, the term ‘divorce’ was a peculiar concept and traditionally there was no concept of divorce. Husband and wife were expected to live together in a conjugal relation despite of grave disagreements or infliction of unethical and immoral behaviour.

British India had only one enactment regulating the matrimonial laws which specifically governed the individuals professing Christianity. It was in 1955 that the Parliament of India thought it necessary to legislate a law on Hindu marriage and its dissolution and subsequently, the Hindu Marriage Act, 1955 was enacted. Under ancient Hindu law, divorce was not recognized and under the Act of 1995 also, divorce is not favoured or encouraged and permitted only on certain serious, specific grounds which are provided as below.

Who can apply for divorce (Applicability) under the Hindu Marriage Act, 1955:

The Hindu Marriage Act, 1955 governs the following categories of persons: –

1. Any person who is a Hindu, Buddhist, Jain or Sikh by religion;

2. Any person who is domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion and who is not governed by any other law; or

3. Any child (legitimate or illegitimate) whose both or one of the parents is a Hindu, Buddhist, Jain or Sikh by religion (provided that incase of one parent professing the herein mentioned religions, the child is brought up as a Hindu, Sikh, Jain or Buddhist).

Grounds for Divorce under Hindu Law or the Hindu Marriage Act, 1955:

ADULTERY

A petition for divorce can be presented by one party on the ground that the other party has indulged in an act of sexual intercourse with a third party, however, such an act must be voluntary and consensual and without the prior approval/consent of the spouse. A single act of adultery is sufficient to invoke this ground, however, an attempt to commit adultery is insufficient. Adultery is no longer a criminal offence and circumstantial evidence is enough to prove the commission of the act.

CRUELTY

It constitutes any act, conduct or behaviour which causes apprehension to one’s life or causes harm to one’s health and/or reputation or causes mental agony. However, such an act/conduct/behaviour must be so grave that it should not be possible for any reasonable person to tolerate such conduct. Cruelty can be physical as well as mental. Lack of mutual love, respect and understanding amounts to cruelty but it has to be differentiated from general depletion of marital bond.

DESERTION

An act of voluntary abandonment of spouse for a minimum period of two years without any just and reasonable cause. It is important that the abandoned spouse has not consented to such desertion. Desertion can be actual (physical desertion) and constructive (mental/emotional abandonment).

CONVERSION

If a party ceases to be a Hindu by converting to another religion (i.e., a non-Hindu religion), in such circumstance, the other party can file a divorce petition on this ground. The converting spouse must, however, complete all the requisite formalities/rituals for such conversion and should actually preach the new religion.

INSANITY

If a party is suffering continuously or intermittently from a mental disorder to such an extent that its’ not reasonably possible to live with him, then the other party can file a petition for divorce by invoking such a ground. However, a marriage shall be treated as voidable if a person had been suffering from mental disorder before solemnization of marriage, without the knowledge of his/her spouse.

LEPROSY

A party can file a divorce petition on this ground only if his/her spouse is suffering from ’virulent’ and ‘incurable’ form of leprosy. No duration is specified in the Act for this purpose.

VENERAL DISEASE

These are the sexually transmitted diseases. A person can file a divorce petition on this ground if his/her spouse is suffering from a venereal disease in a communicable form. However, the spouse must not have contracted the disease from such person itself. The defense of curability or innocence cannot be taken in such case.

RENUNCIATION

If a spouse renounces the world and enters into religious order, the other spouse can file a petition for divorce. A person is considered to have entered into religious order when he performs all the ceremonies/rituals prescribed by such order.

PRESUMPTION OF DEATH

If a person has not been heard of being alive for a continuous period of seven years by individuals who would have naturally heard of him, then his/her spouse can file a divorce petition on this ground.

NON-COMPLIANCE WITH THE DECREE OF JUDICIAL SEPARATION

When a decree of judicial separation is passed under the Act and even after one-year cohabitation has not resumed between the parties, in such case, either party can file a petition for divorce.

NON-COMPLIANCE WITH THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS

When such a decree has been passed under the Act and even after one year of passing the decree, there has been no restitution of conjugal rights/obligations, either party can file a divorce petition.

Grounds for divorce (available only to wife):

The wife can seek divorce on any of the following grounds: –

1. If the marriage is solemnized under the Hindu Marriage Act, 1955 and the husband marries another woman in spite of his first wife being alive, in such case, the first wife can file a petition for divorce.

2. If the husband has committed an offence relating to rape, sodomy or bestiality.

3. If cohabitation has not resumed even after one year of passing of the decree of maintenance in favour of the wife.

4. If the wife got married prior to attaining the age of fifteen then after attaining fifteen years but before eighteen years of age, the wife can repudiate the marriage irrespective of the fact of consummation of marriage.

Divorce by mutual consent:

Both husband and wife may jointly file a divorce petition before a District Court on the grounds that:

1. they have been living separately for a minimum period of one year;

2. they have not been able to live together; and

3. they have mutually decided that their marriage should be dissolved.

After presentation of the petition, the parties have to wait for a period of six months (‘Cooling Period’), however, not exceeding eighteen months from the date of filing the petition. After the aforesaid period, they are collectively/jointly required to move a motion in the Court that divorce be granted.

The Court, on being satisfied that the averments contained in the petition are true, shall pass a decree of divorce thereby dissolving the marriage. It is important to note that the parties to a divorce petition by mutual consent have the liberty to withdraw the consent at any time during the proceedings until the divorce decree is passed.

By Isha Thakur, Law Student, SNDT Law School

ishav1998@gmail.com | Dec 23, 2020 

India is prominent for being a country of cultural extravaganza and religious diversity constituting a socially pluralistic and multiethnic democracy, as such interfaith marriages were inevitable. With modernization coupled with westernization, liberal education and intellect independence, there has been a constant rise in the percentage of individuals tying knots outside their own communities. People of our country are increasingly keener to find a partner of their choice rather than giving in the familial pressure of marrying within the barricades of their own caste as arranged traditionally.

However, inter-caste marriages are still associated with a lot of stigmas. With a view to eradicate such notions, the Special Marriage Act, 1954 was enacted to provide for special form of unrestricted inter-religious marriages which could not be solemnized under the various religious customs. The applicability of the Special Marriage Act, 1954 extends to every individual who is a Hindu, Muslim, Sikh, Christian, Jew, Buddhist living in India as well as Indian nationals residing overseas. Hence, the Act allows marriage between two individuals irrespective of the caste and religion they follow and without the need to renounce their religion which the antecedent enactment required.

In order to bridge the gap contained in the Act of 1872 and to bring it at par with prevailing personal laws, the Act contains special provisions for registration of marriages, its dissolution and other relating aspects as enumerated below.

Requisites of a Valid Marriage under the Act:

1. The parties must have completed the minimum age limit to marry i.e., 21 years for bridegroom and 18 years for the bride;

2. Neither party must be married or have any living spouse;

3. The parties must be capable of giving valid consent i.e., they must not suffer from unsoundness of mind or mental disorder; and

4. The parties must not be within the prohibited degrees of relationship.

The abovementioned conditions clearly showcase the lack of hindrance of religion and caste formalities. Any person desiring a civil form of marriage can get married under this Act. In fact, two individuals belonging to different nationalities come under the ambit of this Act as well.

Divorce under the Act:

A person can file a petition for divorce in the District Court under the Special Marriage Act, 1954 only if his/her marriage has been solemnized under the Act after satisfying the abovementioned requisites. The Act provides for several instances whereby the parties may desire to terminate the marital bond, such grounds maybe divided into three parts as follows:

Grounds for Divorce (available to both the parties):

Adultery

A single act of consensual extramarital intercourse would be sufficient to constitute the ground of adultery. It is to be noted that a mere attempt to commit such an act doesn’t constitute adultery. Though the Act provides for adultery as a ground of divorce, it is, however, backed by traditional religious principles since committing such an act often destroys the sanctity and scaredness of marriage.

Desertion

Desertion can be defined as “complete repudiation of marital obligations”. A petition for divorce can be filed on the ground of willful withdrawal of a spouse from the marital bond without any reasonable cause for a continuous period of two years. However, such a withdrawal must not be consented to by the abandoned spouse. To constitute the ground of desertion, there must be intention to desert plus actual physical or mental abandonment.

Imprisonment

If a spouse is convicted for a period of seven years or more for an offence under the Indian Penal Code, the other spouse can file a petition for divorce on such ground. However, a decree of divorce shall not be granted if such petition is filed after competition of three years of the seven year or more imprisonment.

Cruelty

The term ‘cruelty’ is construed according to the definition laid down in Russell v. Russell (1897 AC 395). According to such definition, cruelty can be defined as any act, conduct or behaviour which causes apprehension to one’s life or causes harm to one’s health and/or reputation or causes mental agony. Here, more than the intention of the spouse, the behaviour and conduct is taken into consideration where such a conduct/behaviour must be so grave that it should not be possible for any reasonable person to tolerate such conduct.

Insanity

If a party is suffering continuously or intermittently from a mental disorder to such an extent that its’ not reasonably possible to live with him, then the other party can file a petition for divorce by invoking such a ground. However, a marriage shall be treated as voidable if a person had been suffering from mental disorder before solemnization of marriage, without the knowledge of his/her spouse.

Venereal Disease

These types of diseases are more commonly referred to as sexually transmitted diseases. A party suffering from a venereal disease in a virulent and communicable form is sufficient ground for filling a petition for divorce. However, such party must not have contracted the disease in question from his/her spouse. The Act does not specify the duration of the disease to subsist neither does it mention curability or lack if it.

Leprosy

A petition for divorce can be filed on the ground that the spouse has been suffering from leprosy considering that it has not be contracted from the other spouse. It is to be noted that leprosy under the Act need not be ‘virulent’ or ‘incurable’ in nature as required under the Hindu Marriage Act, 1955.

Presumption of death

A party can file a divorce petition on the ground that the other party to the marriage has not been heard of being alive for a period of seven years or more by those who would have naturally heard of him.

Non-Resumption of Cohabitation after a decree of Judicial Separation

The principle behind Judicial Separation is to distance the parties from each other for contemplation so as to encourage the possibility of reconciliation. But if even after one year from the date of decree of Judicial Separation cohabitation has not resumed, either party can file a divorce petition on such ground. It is to be noted that single act of cohabitation doesn’t constitute ‘resumption’.

Non-compliance with a decree for restitution of conjugal rights

When such a decree has been passed under the Act and even after one year of passing the decree, there has been no restitution of conjugal rights/obligations, either party can file a divorce petition.

Grounds for Divorce (available only to wife):

The wife can seek divorce on any of the following grounds: –

1. If the husband has committed an offence relating to rape, sodomy or bestiality. A decree of divorce shall, however, be granted only when the husband’s guilt is proved before the court of law and he’s convicted for committing such an offence.

2. If cohabitation has not resumed even after one year of passing of the decree of maintenance in favour of the wife.

Divorce by mutual consent:

Both the parties to a marriage may jointly present a petition for divorce before the District Court on the grounds that:

1. they have been living separately for a minimum period of one year;

2. they have not been able to live together; and

3. they have mutually decided that their marriage should be dissolved.

Six months after the presentation of the petition but not later then eighteen months, both parties are required to move a motion in the Court for seeking a decree of divorce. Before granting a decree of divorce, the Court shall take the following factors into consideration:

1. That the petition has not been withdrawn.

2. That the marriage is solemnized in accordance with the provisions contained in the Act.

3. That the averments contained in the petition are true.

4. That the consent of either party to the divorce has not been obtained through fraud, coercion or undue influence.

5. That the petition is filed within the specified time limit.

The Court, on being satisfied with the abovementioned considerations, shall pass a decree for dissolution of marriage. It is imperative to note that the petition can, however, be filed only after one year of solemnization of marriage i.e. from the date appearing on the wedding certificate in the marriage certificate book.